Bills Digest no. 95 2005–06

Electoral and Referendum Amendment (Electoral Integrity
and Other Measures) Bill2005

WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.

The purpose of the Bill is to
amend the Commonwealth Electoral Act 1918 (the Act), the
Referendum (Machinery Provisions) Act 1984 (the Referendum
Act) and the Income Tax Assessment Act 1997, so as to
implement government policy on electoral reform.

The Bill proposes to increase the thresholds for disclosing
gifts to parties and candidates from $1500 to $10 000. The
threshold will also be CPI indexed. This proposal has long been
Liberal Party policy. The case put forward by Senator Abetz in
favour of this is that the threshold:

was introduced 20 years ago at $1000 and has been eroded by
inflation.

The issue is a highly controversial one. An attempt to increase
these thresholds from $1500 to $3000 failed in 2004.(2)
Senator John Faulkner, Michael Danby MP and Laurie Ferguson MP said
of the proposal to increase the thresholds to $3000 that it had no
policy merit and will only diminish the transparency of the
disclosure laws and allow further donations to parties and
candidates to go undisclosed. (3)

This issue will be considered in greater detail in a forthcoming
Parliamentary Library Research Note on political finance
disclosure.

The close of rolls refers to the time by which electors must
enrol or change enrolment details prior to an election. Currently,
the time is seven days after the election writs are issued. The
election writs are usually issued the next working day after the
announcement of an election but this is not always the case. The
last election was announced on Monday 29 August 2004, and the writs
issued 31 August. The proposal in the Bill is to close the
electoral rolls at 8 pm on the third working day after the issue of
the writ. Note, however, that the practical effect of this is to
close the rolls at 8 pm on the day of the issue of the writ,
because persons not on the roll between that time and 8 pm on the
third day will not be added with two exceptions 17 year-olds who
turn 18 between the day the writ is issued and polling day, and
those who are granted citizenship between those times. A similar
proposal was rejected by the Senate in 2004.(4)

According to Senator Abetz, the problem with the current seven
day period is that:

During the rush to enrol in the week following the
announcement of a general election, incredible pressure is placed
on the Australian Electoral Commission s ability to accurately
check and assess the veracity of enrolment claims
received.(5)

It stands to reason, says Senator Abetz, that:

in this rush to get on the roll after the calling
of an election, the level of scrutiny of applications simply cannot
be what it is during a non-election period when the AEC receives
enrolments at a much more steady pace.(6)

Senator Abetz s view is not, however, shared by the Australian
Electoral Commission (AEC), which noted, in its submission to the
Joint Standing Committee on Electoral Matters (JSCEM) in 2002:

The AEC is on record repeatedly expressing its
concern at suggestions to abolish or shorten the period between the
issue of the writs and the close of the rolls. That period clearly
serves a useful purpose for many electors, whether to permit them
to enrol for the first time (tens of thousands of electors), or to
correct their enrolment to their current address so that they can
vote in the appropriate electoral contest (hundreds of thousands of
electors). The AEC considers it would be a backward step to repeal
the provision which guarantees electors this seven day period in
which to correct their enrolment.(7)

The JSCEM report on the 2001 election recommended against any
change in the close of the rolls period. In the JSCEM report on the
2004 election there was a split on this issue between the majority
of government members and the minor party and opposition party
members. The majority recommended that the rolls be closed early.
The majority s view was that:

Whilst acknowledging the efforts made by the AEC
in attempting to ensure that the electoral roll is updated with
integrity during the close of rolls period, the Committee considers
that the volume of transactions which takes place during that
period limits the AEC s ability to conduct the thorough and
appropriate checks required to ensure that
integrity.(8)

The minority report took the opposite view, citing repeated
evidence from the AEC supporting the current seven day close of
rolls period.(9)

Another argument used in favour of this amendment is that it is
a requirement under current legislation to enrol to vote as soon as
eligible and to advise the AEC of changes to address within one
month and twenty one days after the change.(10) If
people comply with these requirements, so the arguments runs, there
should not be a problem at the time an election is called. The
problem here is that, despite the current requirements, only 40% of
people advise the AEC in the first instance of enrolment
entitlements or changes in accordance with the Act.(11)
As the AEC notes, the calling of an election remains a catalyst for
the notification of changes to the roll and new enrolments.

The Bill makes provision to extend the definition of associated
entity so that it applies to entities with membership of a
political party and entities with voting rights in political
parties. In his speech to the Sydney Institute, Senator Abetz
indicates that this provision is directed at including trade unions
amongst organisations required to furnish annual returns under s.
314AEA of the Commonwealth Electoral Act.(12)

The Bill also proposes that third parties will be required to
furnish annual returns under the Commonwealth Electoral Act. In
explaining the logic behind this provision Senator Abetz has
asserted that organisations like the Wilderness Society and the
RSPCA, when they spend money on campaigns which coincide with
policies of the ALP, are effectively campaigning in favour of the
ALP. (13) According to Senator Abetz, such organisations
should be made accountable by a requirement that they lodge annual
returns in addition to the current requirement that they lodge
election returns.

The Bill contains a proposal seeking to deny the vote to any
person serving a sentence of imprisonment. This represents a change
from the current provision which allows prisoners serving sentences
of less than 3 years to vote.(14) Persons released on
parole and other similar release schemes will be entitled to
vote.

According to the Australian Bureau of Statistics (ABS), there
were 24 171 prisoners in Australia on 30 June 2004.(15)
The number of sentenced prisoners was 19 236.(16) The
ABS has advised that the number of prisoners serving a sentence of
imprisonment of 3 years or more (as at 30 June 2004), was 9 861.
That figure is for those actually in custody and does not include
those released on parole.

As the proposal in this Bill is to remove voting rights from all
prisoners, the total amount of people disenfranchised under the new
provision will be 19 236 the total amount of people serving
sentences (that is, excluding those on remand). The
amount of people who will be disenfranchised under the new
provision who were not affected by the old provision is, therefore,
9375 (on the June 2004 figures).(17) That number will be
dispersed throughout the electoral boundaries because prisoners are
enrolled according to their address prior to entering custody not
the address of the prison. The impact will further be affected by
considerations such as how many prisoners actually exercise their
right to vote.

This is a controversial issue which divides politicians and the
community. Some argue that all prisoners should be allowed to vote,
some that all prisoners should be denied the vote, and others for
some middle ground, such as the existing provision. For an outline
of the history and similar provisions in Australia see Jerome
Davidson Inside Outcasts: prisoners and the right to vote in
Australia.(18)

Views on this issue are also divided around the world. In the
United States 48 states deny the right to vote to serving
prisoners, 33 disqualify those on parole, and 8 deny the vote not
only to those in prison, but even to convicted persons after their
release.(19) Eighteen European countries, including
Ireland, the Netherlands and Spain, have no restriction on prisoner
voting. Eight European countries have some prisoner voting
restrictions, and some countries, such as France and Germany, allow
courts to impose disenfranchisement as a punishment. Nine European
countries prohibit all sentenced prisoners from voting, they are
Armenia, Bulgaria, Czech Republic, Estonia, Hungary, Luxembourg,
Romania, Russia and England.(20) Some of these bans are
likely to be affected by the recent judgement of the Grand Chamber
of the European Court of Human Rights in Hirst vUnited Kingdom(No. 2). That case was concerned
with the interpretation of Article 3 of the First Protocol to the
European Convention of Human Rights, which reads:

The High Contracting Parties undertake to hold
free elections at reasonable intervals by secret ballot, under
conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature.

The United Kingdom has a provision to the effect that: A
convicted person during the time that he is detained in a penal
institution in pursuance of his sentence is legally incapable of
voting at any parliamentary or local government election. The
validity of that provision was challenged. When the matter was
heard at first instance in the domestic English court, Lord Justice
Kennedy held that the effect of Article 3 of the Convention was
that, if a prisoner was to be disenfranchised, it must be in the
pursuit of a legitimate aim . His Lordship found that the question
of the legitimacy of the aims in the case was best left to the
legislature. When the matter proceeded to the European Court of
Human Rights, the court, comprising seven judges, agreed that the
right to vote was subject to exceptions that were imposed in
pursuit of a legitimate aim, but held that the English
disenfranchisement provision violated Article 3. The judges took
the view that:

removal of the vote in fact runs counter to the
rehabilitation of the offender as a law-abiding member of the
community and undermines the authority of the law as derived from a
legislature which the community as a whole votes into
power.(21)

The UK government appealed to the Grand Chamber. Lord Filkin,
Parliamentary Under-Secretary of State at the Department of
Constitutional Affairs, echoed the view held by Senator Abetz and
other Australian proponents of this provision when he told the UK
Parliament that:

It has been the view of successive governments,
including this government, that persons who have committed crimes
serious enough to warrant a custodial sentence should forfeit the
right to have a say in how the country is governed while they are
detained. The judgment of the European Court of Human Rights in the
Hirst case challenges this position. We wish to ensure that the
issues in relation to this important and long-standing policy are
fully considered.(22)

The British Government appeal was, however, unsuccessful. By a
majority of 12:5, the Grand Chamber held that the British law
violated Article 3 of the Convention.(23) The Court
emphasised that the entitlement to vote was a right and not a
privilege. Whilst there was room for limitations on the right to
vote they had to be in pursuit of a legitimate aim and be
proportionate. The principle of proportionality required a
discernible and sufficient link between the sanction and the
conduct and circumstances of the individual concerned. A provision
indiscriminately banning all prisoners from voting could not be
shown to be in pursuit of a legitimate aim, or to be
proportionate.

Whilst Australia has no equivalent to the European Convention on
Human Rights, provisions placing restrictions on voting by
Australian prisoners are arguably in breach of Australia s
obligations under article 25 of the International Covenant on Civil
and Political Rights. Article 25 provides that:

Every citizen shall have the right and the
opportunity, ..without unreasonable restrictions: (a) to take part
in the conduct of public affairs, directly or through freely chosen
representatives; (b) to vote and be elected at genuine periodic
elections which shall be by universal and equal suffrage and shall
be held by secret ballot, guaranteeing the free expression of the
will of the electors.

Prisoner disenfranchisement provisions are also arguably in
breach of the Constitution, which requires that members of the
Australian Parliament be chosen by the people .(24) If a
provision of this nature was successfully challenged in the High
Court on this basis it would be rendered invalid and of no
effect.

Under the current provisions of the Act, people seeking to
enrol, to transfer their enrolment or to claim age 17 enrolment
must submit a signed enrolment form witnessed by an elector or
person entitled to enrolment.(25) Those requirements
were to be amended by Electoral and Referendum Amendment
(Enrolment Integrity and Other Measures) Act 2004. That Act
required regulations made for the purpose of checking enrolment
identity to:

require the applicant for enrolment to provide documentary
evidence of their name and address by providing their driver s
licence number; or

where the applicant does not possess a driver s licence, the
application must be countersigned by two persons on the electoral
roll who can confirm the applicant s identity and current
residential address. The counter-signatories must have known the
applicant for at least one month or have sighted identification
showing the applicant s name and address.

The intention of the Government is for this Bill to supercede
the 2004 changes (which are yet to come into effect) and to
introduce a stricter requirement. The nature of the proposed
requirements is summarised in the second reading speech as being
to:

introduce a proof of identity requirement for
people enrolling or updating their enrolment by requiring that they
provide their driver s licence number on their enrolment
application. If they do not have a driver s licence, the elector
can show a prescribed identity document to a person who is in a
prescribed class of electors and who can attest to the identity of
the applicant. If an elector does not have a driver s licence or a
prescribed identity document, then they must have their enrolment
application signed by two referees who are not related to the
applicant, who have known the applicant for at least one month and
who must provide their driver s licence number.

The changes broadly accord with the recommendation of the
majority in the JSCEM report on the 2004 election.(26)
The minority were opposed to that recommendation on the basis
that:

No evidence has been produced which would justify
the Committee Majority s contention that this provision, enacted
only last year and not yet put into operation, is now inadequate
and must be replaced by a more stringent requirement.

We also point out that the extra time which would
be required for the AEC to process applications substantiated with
a range of verifying documentation would create a backlog of
applications in the period prior to the closing of the rolls,
particularly if the Majority recommendation to close the rolls on
the day of the issuing of the writs were to be put into
effect.(27)

The Bill proposes an elaborate scheme of deregistration and
re-registration of parties. The purpose of the scheme is primarily
to give effect to government concern over misleading party names,
or, more specifically, the name of the party Liberals for Forests
.(28) The scheme adopted was recommended by the majority
of the JSCEM report on the 2004 election. The concerns of the
majority are outlined extensively in Chapters 4 and 5 of the
report. They are, essentially, that significant numbers of voters
at the 2004 election were misled by Liberals for Forests
how-to-vote cards. The minority disagreed, calling the majority s
allegations regarding Liberals for Forests nothing more than a
political stunt on behalf of the Coalition .(29)

The Electoral Act currently requires publishers and broadcasters
to lodge returns with the AEC disclosing details of pre-election
political advertising including the identity of the advertiser, the
authority for the advertisement, the times it was broadcast or
published and the amount charged.(30) The Bill proposes
to remove these requirements from the Act. This is a
government-initiated amendment.

No explanation is offered in the Explanatory Memorandum but when
a previous attempt was made to repeal these requirements the
rationale offered was that: These provisions place an
administrative burden on publishing and broadcasting businesses
that is not required because expenditure on electoral advertising
is already disclosed by individuals and organisations that
authorise the advertisements as required under other sections of
the Electoral Act. (31) A contrary view is that the
requirement for broadcasters and publishers to furnish returns
provides a means of checking that information received by other
parties is accurate and complete.

Item 14 repeals the existing provision
governing prisoners voting entitlement. Item 15
repeals the existing subsection 93(8AA) and
substitutes a new section of the same number that makes any person
serving a sentence of imprisonment not entitled to vote at federal
elections.

Item 29 inserts new section
98AA which requires that any regulations made in relation
to identification for enrolment must require an applicant to:

provide their drivers license number, or, if they do not
possess a license

show to a prescribed elector an identification document of a
prescribed kind or otherwise

have their application countersigned by two electors who
can confirm the applicant s name and have known the applicant for
at least one month.

Item 36 inserts new section
99B into the Act. The new section provides for provisional
enrolment for non-citizens who will be granted citizenship between
the issue of the election writ and the date of the election. The
application must be made between the announcement of an election
and 8pm on the third working day after the electoral writs are
issued. A declaration vote can then be lodged provisionally until
proof of citizenship and identity are provided by the Friday after
polling day.

Item 74 inserts the new definition of
associated entity into subsection 287(1) of the
Act. The new definition effectively adds to the existing one:

an entity that is a financial member of a registered political
party; or

an entity on whose behalf another person is a financial member
of a registered political party; or

an entity that has voting rights in a registered political
party; or

an entity on whose behalf another person has voting rights in a
registered political party.

Item 75 repeals the definition of broadcaster
from subsection 287(1) consistent with the
intention to remove the requirement for broadcasters to lodge
returns.

Item 79 repeals the existing subsections
305A(1), (2) and
(3) and inserts new subsections
305A(1),(1A), (2), (2A) and
(3). These are the provisions which give effect to
the policy decision to increase disclosure thresholds for gifts to
amounts above $10 000.

Item 82 repeals section 310
and 311 of the Act. These are the sections
requiring broadcasters and publishers to furnish returns relating
to political advertising.

Item 84 inserts new sections
314AEB and 314AEC into the Act. These
sections require that persons other than political parties and
candidates (i.e. third parties ) are required to furnish annual
returns relating to gifts received and expenditure incurred in
amounts above $10 000.

Item 87 inserts section 328A
into the Act. This provision extends the requirement for the name
and address of persons sponsoring political advertisements to
appear at the end of such advertisements to internet
advertising.

Items 102 to 139 make amendments to the
Referendum (Machinery Provisions) Act 1984, that
essentially apply the same changes made to the Electoral Act to the
Referendum Act.

Item 2 provides that political parties
registered under the Act are deregistered, unless they come within
certain exceptions specified in item 3.

Item 3 provides for three exceptions to
deregistration.

Paragraph (1) provides that a party is not deregistered if it is
a Parliamentary party (i.e. if it has at least one member who is a
member of the Parliament of the Commonwealth: s. 123(1) of the
Act), and the AEC has determined that it is an eligible political
party for the purposes of section 138A of the Act.

Paragraph (2) provides that a party is not deregistered if it is
a Parliamentary party and the AEC determines that the party is an
eligible party under section 138A after the party complies with the
AEC s request to provide information.

Paragraph (3) provides that a party is not deregistered if the
party claims, within three months of item 3 s commencement, that it
should not be deregistered and the AEC is satisfied that a member
of the party was a candidate for the party at an election and was
elected to the Commonwealth Parliament. Paragraph (4) outlines
other conditions prerequisite to a claim to avoid
deregistration.

Item 4 provides for a waiver of the fee for
reregistration for parties deregistered under item
2.

Schedule 4 inserts new subdivision
30-DA into the Income Tax Assessment Act 1997.
The new subdivision increases the tax deductible threshold for
political donations from $100 to $1500 for an income year.

Concluding Comments

This Bill contains a number of proposals which have proven
controversial in the past. Many of the provisions have been
introduced to previous Parliaments but have been rejected by the
Senate. The provisions are unlikely to be any less controversial on
this occasion.

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Australian Parliament using information available at the time of
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